Australia - New legislation introduces ban on excessive card payment surcharges

From 1 September 2017, all businesses which operate in Australia or which utilise an Australian bank will be prohibited from charging customers excessive surcharges for making payments using EFTPOS, MasterCard, Visa and American Express. The purpose of this ban is to ensure that businesses do not recover more than the applicable costs of accepting card payments from consumers. The ban excludes payment methods such as BPAY, PaylPal, Diners Club, American Express cards issued directly by American Express, cash and cheques. The Competition and Consumer Amendment (Payment Surcharges) Act 2016 inserts a new Part into the Competition and Consumer Act 2010 (Cth), and operates alongside interchange fee standards set by the Reserve Bank of Australia (RBA). The RBA's standards indicate that a surcharge will be considered excessive when it exceeds the permitted cost of acceptance, in other words the external cost incurred by a business in accepting that payment type, including merchant service fees and any rental and maintenance fess for payment card terminals. Whilst the costs of accepting a card payment will vary depending on the card type, if businesses want to set a single card surcharge the new law requires that this amount be set at the lowest cost of acceptance rather than the cost averaged out over multiple payment methods. The new law further grants the ACCC powers to enforce the ban and serves to remind Australian businesses to take a close look at their surcharging practices. The ACCC may issue surcharge information notices requiring a business to furnish evidence of the actual costs incurred for accepting a particularly payment method. If the ACCC believes on reasonable grounds that a business has breached the ban, it can issue infringement notices or bring court proceedings to seek pecuniary penalties. The ACCC media release is available here. The ACCC guide for businesses on payment surcharges is available here.